Mrs Alicia Di Blasi v Coles Supermarket Aust Pty Ltd

[2019] FWC 2974

[2019] FWC 2974

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mrs Alicia Di Blasi
v
Coles Supermarket Aust Pty Ltd
(U2019/688)

COMMISSIONER HUNT BRISBANE, 17 MAY 2019

Application for an unfair dismissal remedy – application to dismiss pursuant to s.587 – parties entered into a settlement agreement – application pursuant to s.394 dismissed

[1] Ms Alicia Di Blasi has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that her dismissal from Coles Supermarket Aust Pty Ltd (Coles) was harsh, unjust or unreasonable.

[2] Ms Di Blasi commenced employment with Coles on or around 13 December 2005 and was dismissed on 7 January 2019. At the time of her dismissal she was employed as a part-time Supervisor at Coles’ Coomera West store.

[3] The parties participated in a conciliation conference before a Fair Work Commission (the Commission) staff conciliator on 26 February 2019. The matter was unable to be resolved and was subsequently allocated to me for determination. Ms Di Blasi did not engage a representative. Coles was represented by Lander & Rogers.

[4] After allocation to me the parties agreed to participate in a member assisted conference (MAC) by telephone before Deputy President Lake on 16 April 2019. Ms Di Blasi appeared by herself and did not have a support person. The Deputy President granted leave for Coles to be represented by Lander & Rogers for the purposes of the MAC. The following persons appeared for Coles during the MAC:

•  Mr Will Spargo, Partner, Lander & Rogers;

•  Ms Olivia Bramwell, Lawyer, Lander & Rogers;

•  Ms Mo Mulenga, Senior Consultant Advisory Services, Coles

Purported settlement

[5] Coles’ position is that the parties had agreed upon a binding settlement to resolve the matter by the conclusion of the MAC on 16 April 2019. In summary, that agreement was (the Settlement Agreement):

•  Ms Di Blasi would be paid by Coles the gross amount of $8,142.56 (16 weeks’ pay) within 14 days of Ms Di Blasi returning a signed copy of written terms recording the settlement;

•  The reason for Ms Di Blasi’s dismissal would be substituted for a resignation;

•  Ms Di Blasi to be provided with a statement of service confirming her resignation and providing a contact person within Coles;

•  Ms Di Blasi’s application under s.394 of the Act be discontinued;

•  The parties to enter into a deed of release prepared by Lander & Rogers in the usual terms including mutual confidentiality, full release from further claims and mutual non-disparagement.

[6] On 18 April 2019 Ms Di Blasi filed and served material relevant to her substantive hearing which was due to be heard on 2 May 2019. Further, she sent an email to my chambers and to Coles’ representative opposing leave being granted to Coles for the hearing.

[7] On 18 April 2019 I issued a decision 1 granting leave for Coles to be represented by a lawyer at the substantive hearing before me on 2 May 2019.

[8] On 23 April 2019 Coles corresponded that a settlement had been reached, and it appeared to Coles that Ms Di Blasi had changed her mind, and whilst it had not been communicated directly by Ms Di Blasi to Coles that she no longer wished to be bound by the settlement reached, the Deputy President had informed Coles that Ms Di Blasi stated that she no longer wishes to proceed with the settlement.

[9] Coles applied for Ms Di Blasi’s application to be dismissed pursuant to s.587 of the Act on the basis that the parties had agreed to be bound by the Settlement Agreement, which included a term that Ms Di Blasi would withdraw her application for an unfair dismissal remedy.

[10] On 23 April 2019 correspondence was sent from my chambers to the parties, noting that Ms Di Blasi was not represented, and explaining the effect of the application made by Coles. A copy of the decision in Gill v Rio Tinto Aluminium Limited T/A Rio Tinto Weipa[2017] FWC 2903 (Gill) was provided to the parties with the following communication:

“A copy of the Commissioner’s decision in Gill is attached for the parties’ reference. It is not provided as supporting any finding the Commissioner may make in the matter presently before her, but to demonstrate how such an application is considered by the Commission.”

[11] I directed Coles to produce a draft agreed statement of facts regarding the MAC, which Ms Di Blasi could then iterate upon if she disagreed in any way. Coles produced an agreed statement of facts regarding the MAC. Ms Di Blasi did not indicate prior to the hearing of Coles’ application that she disagreed with any matters within the agreed statement of facts.

[12] Coles and Ms Di Blasi produced submissions regarding the MAC and relevant to Coles’ application. I ordered that Coles produce notes taken during the MAC by the persons that participated in the MAC on its behalf. Coles filed to my chambers and served on Ms Di Blasi notes taken by Ms Mulenga and Ms Bramwell during the MAC. Ms Mulenga’s and Ms Bramwell’s notes do not depart from the agreed statement of facts that the parties have consented to adopt.

Hearing

[13] Coles’ application pursuant to s.587 of the Act was heard before me in Brisbane on 2 May 2019. Ms Di Blasi appeared on her own behalf. Mr Spargo was granted leave to appear for Coles, instructed by Ms Mulenga.

[14] The purpose of this decision is to consider whether Ms Di Blasi’s application should be dismissed pursuant to s.587 of the Act.

[15] Whilst not all of the submissions and evidence may be referred to in this decision, all of such have been considered.

Uncontested timeline of events

[16] The following matters were uncontested between the parties. 2

[17] The MAC was conducted by telephone before the Deputy President and commenced at approximately 1:00pm on 16 April 2019. The attendees for the MAC were:

•  The Deputy President;

•  Ms Alicia Di Blasi;

•  Mr Will Spargo, Partner, Lander & Rogers;

•  Ms Olivia Bramwell, Lawyer, Lander & Rogers;

•  Ms Mo Mulenga, Senior Consultant Advisory Services, Coles

[18] I note that Ms Di Blasi’s evidence is that she did not know at the time of the MAC that Ms Bramwell was also participating for Coles. However, she did not dispute at the hearing that Ms Bramwell participated in the MAC for Coles by taking notes during the course of the MAC.

[19] Coles sought to be represented by Lander & Rogers during the MAC pursuant to s.596 of the Act. Ms Di Blasi made submissions opposing the granting of leave. The Deputy President granted leave for Coles to be represented by Lander & Rogers for the purposes of the MAC.

[20] The Deputy President gave a brief preamble of how the MAC would proceed. Both Ms Di Blasi and Mr Spargo gave opening statements outlining the parties’ positions.

[21] At approximately 1:25pm the parties broke into private conference calls. The Deputy President first spoke privately with Ms Di Blasi. Ms Di Blasi communicated to the Deputy President an offer that she wished to put to Coles to resolve the proceedings; that she be reinstated to her former employment with Coles. The Deputy President conveyed Ms Di Blasi’s offer to Coles in private conference.

[22] Coles rejected Ms Di Blasi’s first offer and made a counter-offer that it pay to Ms Di Blasi $3,053.46 gross (six weeks’ pay) within 14 days of Ms Di Blasi returning signed terms of settlement expressing the further terms of settlement described at [5] above. The Deputy President conveyed Coles’ counter-offer to Ms Di Blasi in private conference.

[23] Ms Di Blasi rejected Coles’ counter-offer and made her own further counter-offer to resolve the proceeding for the payment of $9,160.38 (18 weeks’ pay) and otherwise on the same terms proposed by Coles. The Deputy President conveyed Ms Di Blasi’s offer to Coles in private conference.

[24] Coles rejected Ms Di Blasi’s first offer and made a further counter-offer that it pay to Ms Di Blasi $5,096.10 gross (10 weeks’ pay) and otherwise on the same terms as its first counter-offer. Coles confirmed to the Deputy President that the proposed statement of service would describe that Ms Di Blasi had resigned from her employment and include details for a contact person within Coles regarding Ms Di Blasi’s former employment. The Deputy President conveyed Coles’ further counter-offer to Ms Di Blasi in private conference.

[25] Ms Di Blasi rejected Coles’ counter-offer, making a counter-offer by simply repeating the terms of her previous counter-offer. The Deputy President conveyed Ms Di Blasi’s offer to Coles in private conference.

[26] Coles rejected Ms Di Blasi’s first offer and made a further counter-offer that it pay to Ms Di Blasi $6,106.92 gross (12 weeks’ pay) and otherwise on the same terms as its first counter-offer. The Deputy President conveyed Coles’ further counter-offer to Ms Di Blasi in private conference.

[27] Ms Di Blasi rejected Coles’ counter-offer and made her own further counter-offer to resolve the proceeding for the payment of $8,142.56 (16 weeks’ pay) and otherwise on the same terms proposed by Coles. The Deputy President conveyed Ms Di Blasi’s offer to Coles in private conference.

[28] Coles stated to the Deputy President in private conference that it accepted Ms Di Blasi’s offer to pay to her the amount of $8,142.56 to resolve Ms Di Blasi’s application and the other terms described above at [5]. Coles’ representatives discussed with the Deputy President that they would prepare terms of settlement reflecting the agreement that the parties had reached during the MAC and would provide them to Ms Di Blasi for her execution.

[29] The Deputy President then spoke with Ms Di Blasi in a private telephone call and conveyed to her that Coles had accepted her offer to resolve the proceedings for payment of $8,142.56 (16 weeks’ pay) and confirmed that Coles would prepare and provide written terms setting out the Settlement Agreement. The parties were not joined together again into a single conference call.

[30] The MAC concluded at approximately 2:50pm on 16 April 2019.

[31] During the morning of 17 April 2019 Ms Di Blasi emailed the Deputy President’s chambers only and later spoke with the Deputy President by phone. Ms Di Blasi said to the Deputy President that she felt she had made the wrong decision in agreeing to the Settlement Agreement. The Deputy President asked that Ms Di Blasi confirm her position by the following day.

[32] Lander & Rogers prepared written terms reflecting the Settlement Agreement and on 18 April 2019 emailed a copy of those terms to Ms Di Blasi and the Deputy President’s chambers.

[33] On 18 April 2019 Ms Di Blasi informed the Deputy President in a further phone call that her decision to agree to the Settlement Agreement had been the wrong decision and she wished to have her application for an unfair dismissal remedy heard and determined by the Commission. The Deputy President took steps to inform Coles of Ms Di Blasi’s position.

Ms Di Blasi’s recollection of the MAC

[34] Ms Di Blasi recalled the following matters in relation to the MAC in addition to the facts agreed between the parties set out above.

[35] Ms Di Blasi stated that she was required to prepare for the MAC “without any legal advice or representation”. 3 She noted that the MAC had originally been listed to commence later on 16 April 2019 than 1:00pm. She had requested that the MAC commence earlier on 16 April 2019 as she was rostered to work later on 16 April 2019.

[36] Ms Di Blasi stated that the Deputy President’s decision to grant leave for Coles to be represented by Lander & Rogers during the MAC “instantly increased the anxiety I was feeling and added to an already intimidating situation for myself.” 4 Ms Di Blasi stated that as the MAC proceeded she found herself “…feeling very unsure, pressured and in an intimidating and time limited situation.”5

[37] Ms Di Blasi’s submissions included the following:

“The Member Assisted Conciliation ran for almost 2 hours and for longer than I had expected, with more than this on my mind, I had two young children at home on school holidays, who I also needed to tend to before leaving for work within less than an hour after the Conciliation had ceased.

I felt I had to make a big decision and I wasn't in the right frame of mind to do so, nor did I have any supporting advice to assist me in settling in this matter.

Once I had made a decision that afternoon, It didn't sit right with me at all. I expected to feel a huge sense of relief, that this matter could be put to rest and I could move on. But I didn't, I knew what I decided was the wrong decision and instead I spent the rest of the day regretting the financial compensation I had agreed to. 

I set out to clear my name, make these wrong accusations right and seek justice for unfair dismissal.

I have lost and suffered much more than an offer of 16 weeks compensation, some of which is financial compensation could not repair. 

By settling I hadn't achieved what I have set out to do, I was giving up and it was certainly not in my best interest. I felt like I was being offered money to go away, It would not have rectified the damage that has been caused by the accusation and then decision made, by my Employer.” 

[38] Ms Di Blasi agreed that on 17 April 2019 she emailed the Deputy President’s chambers and later spoke with the Deputy President. Ms Di Blasi stated that she considered the matter further and determined that it was in her best interests to progress her application for an unfair dismissal remedy to hearing and seek ‘a better resolution’.

[39] Ms Di Blasi stated that had she been informed on the date of the MAC that her decision was binding and it was too late and had to stand by it she would have done her best to move on. Ms Di Blasi stated that her understanding was that she had been given the opportunity to reconsider her decision and upon such reconsideration she decided to progress her application to hearing. 6

Submissions during the hearing

[40] Ms Di Blasi confirmed at the hearing that she agreed with the Agreed Statement of Facts. I took her through the Agreed Statement of Facts.

[41] Pertinent things said by Ms Di Blasi during the hearing include:

Commissioner:	Did you think when you hung up that you had reached a deal?
Ms Di Blasi:	I did. I did.
and later
Ms Di Blasi:	Yeah, I do agree that a deal was struck.
and later
Ms Di Blasi:	I agree with the Agreed Statement of Facts that there was a deal reached at the conciliation that I was later unhappy with.

[42] Ms Di Blasi agreed that it was she who offered 16 weeks to resolve the matter, which was then accepted by Coles.

[43] Ms Di Blasi requested the Commission find that she can continue to pursue her application. She stated that she was not in the right frame of mind when she agreed to the settlement agreement, or not with the correct knowledge or support.

[44] Relevant to having two young children at home at the time of the MAC, during the hearing Ms Di Blasi stated that her children are aged 15 and 10 years.

[45] She stated that she was provided an opportunity to contact her husband to discuss the settlement, but she could not reach him during the MAC. On the day of the MAC she considered that she wanted the “matter to be over”.

[46] Ms Spargo stated that there was no agreement for a cooling-off period, and simply, Ms Di Blasi had a change of heart.

[47] Mr Spargo said that if anything, Ms Di Blasi demonstrated good negotiating and moved Coles up against its own offer. In order to settle the matter, Coles was forced to increase its offer, at one stage, without Ms Di Blasi moving her offer. It could be said that Ms Di Blasi was an adroit negotiator.

Legislation

[48] Section 587 of the Act states:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

Coles’ submissions

[49] Coles submits that Ms Di Blasi accepted to be bound by the terms of the Settlement Agreement during the MAC and the Settlement Agreement remains valid and binding despite the fact that the terms of settlement prepared by Coles’ representatives reflecting the Settlement Agreement reached during the MAC have not been signed and executed by Ms Di Blasi.

[50] Coles referred to the High Court of Australia’s judgment in Masters v Cameron (1954) 91 CLR 353 (Masters) which set out three broad categories that contractual settlement agreements may fall into, summarised as follows: 7

(1) the parties have agreed on all terms and intend to be immediately bound to perform those terms “but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect”; or

(2) the parties have agreed on all terms and intend no departure from or addition to that which their agreed terms express or imply, “but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document”; or

(3) the parties do not intend “to make a concluded bargain at all, unless and until they execute a formal contract.” 

[51] The High Court held that there will be a binding contract between the parties in either of the first two categories, although other courts relying on Masters have considered that the categories set out in Masters are “neither strict nor prescriptive” or “exclusive nor necessarily exhaustive”. 8

[52] Coles referred to the judgment of Besanko J in Australia Postal Corporation v Gorman (2011) 196 FCR 126 (Gorman), where his Honour held:

“[31] An accord and satisfaction extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement. A valid accord and satisfaction is not a discretionary factor relevant to the subsequent litigation of the original claim; it is an answer to the claim.

…

[33] There is nothing in the Act which suggests that an accord and satisfaction should not be recognised. At a general level the object of Chapter 3 Part 3-2 and the general statements of the manner in which FWA is to perform its functions and the matters to which it is to have regard are consistent with the recognition of an accord and satisfaction. Furthermore, the words of subsection 587(1) are wide enough to include the recognition of an accord and satisfaction. As I have said, a valid and effective accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success.”

[53] Coles submitted that it follows from Gorman and Masters that if the Commission considers that there is a binding agreement between Coles and Ms Di Blasi, the Commission has the power to dismiss Ms Di Blasi’ application for an unfair dismissal remedy.

[54] Coles referred to the decision of then Commissioner Gooley in Tomas v Symbion Health [2011] FWA 5458 (Tomas). In Tomas, the parties had agreed to settle during a conciliation process before a Fair Work Commission conciliator. The parties had agreed that their agreement would be “confirmed in a Deed of Release providing for confidentiality and non-disparagement”. 9 The conciliator had asked both parties to confirm their agreement to resolve the matter, which both parties did, and the conciliator stated that the Commission’s file would be marked ‘resolved’.10 After the conciliation, a deed of release was provided to Ms Tomas for execution which she refused to sign, alleging that she had agreed to settle under duress, partly from her own representative.

[55] Then Commissioner Gooley found that the parties’ agreement in Tomas fell within the second category of agreements set out in Masters, and held:

“[43] The remaining issue is whether a binding agreement was made on 1 March 2011. I do not accept that because the agreement made on 1 March 2011 was not signed by Ms Tomas she was not bound by the agreement. There is no legislative requirement or principle of contract law that says that because the agreement made on the 1 March 2011 was not signed it is not enforceable.”

[56] Coles referred to my own decision in Gill v Rio Tinto Aluminium [2017] FWC 2903 (Gill). In Gill, the parties had participated in a MAC before another Member of the Commission at which an oral agreement to settle the matter had purportedly been reached after Rio Tinto Aluminium (Rio Tinto) accepted an offer put by Ms Gill. Ms Gill alleged that she had asked to be given a 24-hour ‘cooling-off’ to reconsider her own offer but Rio Tinto alleged that the cooling off period had been for its benefit. Coles noted Ms Gill’s submissions in that matter that during the MAC she had been juggling personal responsibilities during the MAC and “…was overwhelmed. She was at home with three young children and the negotiations occurred for a lengthy period of time.” 11

[57] I found in Gill that Ms Gill had orally agreed to a settlement agreement during her MAC and that agreement was binding upon her. I found that despite Ms Gill’s personal circumstances during the MAC, she had not informed her representatives that she was without capacity to provide instructions and those personal circumstances did not affect the validity of the agreement. I dismissed Ms Gill’s substantive application. Coles submitted that my consideration of the circumstances in Gill should be applied similarly in this matter and particularly with respect to Ms Di Blasi’s personal circumstances during the conference.

[58] Coles referred to the decision of Commissioner Booth in Csontos v QT Hotels & Resorts Pty Ltd (2016) 261 IR 25 (Csontos) where the Commissioner held:

“[39]… It is important to understand that a binding settlement agreement in this Commission does not have to be made in writing and can be made completely by spoken words or conduct engaged in by the parties.”

[59] Coles referred to the decision of the Full Bench of a predecessor Tribunal to this Commission in Curtis v Darwin City Council (2012) 224 IR 174 (Curtis). In that matter, the parties had reached an oral agreement to settle an application for an unfair dismissal remedy and which was subsequently confirmed in an email which stated: 12

“As per our phone conversation this morning, Ms Bridget Curtis is happy to accept the below to resolve her application for unfair dismissal;

Right to resign

Statement of service (detailed dates of employment and job title) and;

Deed of release encompassing the above and wording that either party cannot make disparaging remarks”

[60] The Full Bench held that the parties had entered a binding settlement agreement although the proposed deed of release was not signed, and considered that the agreement fell within either the first or second category of agreements set out in Masters.

[61] Coles referred to the decision of the Full Bench of a predecessor Tribunal to this Commission in Zoiti-Licastro v Australian Taxation Office (2006) 154 IR 1(Zoiti-Licastro). In that matters, counsel for each of the parties agreed on behalf of their respective clients to enter a settlement agreement resolving the matter. The Full Bench held that an agreement had been reached despite no written agreement having been signed as the agreement, “…was not conditional in any sense on an agreement being signed.” 13

[62] Coles submits that case authorities it cites clearly establish that “a valid and effective accord and satisfaction”, in other words a binding agreement in matters before the Commission need not be made in writing and may be valid “even where the parties do not reach verbal agreement about the detail of the terms with the level of specificity which they did here”. 14

[63] Coles submits that, “it was only performance of the Payment Term that the parties intended to be conditional upon the Terms being executed (for the Respondent’s internal control purposes). As such, the Settlement Agreement reached at the MAC fits well within either the first or second categories of Masters v Cameron, even though the terms were not signed.” 15

[64] Coles submits that Ms Di Blasi’s application for an unfair dismissal remedy should be dismissed pursuant to s.587 of the Act.

[65] Coles acknowledges that if its application is accepted it will be bound by the Settlement Agreement. Coles stated that it is prepared to pay to Ms Di Blasi the amount of $8,142.56 as agreed pursuant to the Settlement Agreement.

Ms Di Blasi’s submissions

[66] Ms Di Blasi submits that Coles’ application pursuant to s.587 of the Act should be dismissed and her substantive application should be progressed to a hearing before me. Ms Di Blasi’s submissions rely on her recollection of the MAC in accordance with the facts uncontested between the parties and her recollection of facts

[67] Ms Di Blasi submits that she was ‘in no state’ to agree to the Settlement Agreement during the MAC. She submits that she was extremely stressed and pressured to agree to the Settlement Agreement during the MAC.

[68] Ms Di Blasi acknowledges that she agreed to the Settlement Agreement during the MAC. However, Ms Di Blasi submits that her decision during the MAC did not sit right with her at all, and knew that she had made the wrong decision.

Consideration

[69] Coles’ application for Ms Di Blasi’s application for an unfair dismissal remedy to be dismissed is made pursuant to s.587 of the Act.

[70] It is clear from Masters, Tomas and Gorman that Coles and Ms Di Blasi were quite capable of entering into a binding agreement to resolve Ms Di Blasi’s application without executing written terms of settlement between them, regardless of any intention to later enshrine the terms of the oral agreement in written terms.

[71] I must be satisfied that the Settlement Agreement was validly entered into by Coles and Ms Di Blasi during the MAC on 16 April 2019, and that they intended for the Settlement Agreement to be immediately binding upon them, that is, I must be satisfied that the Settlement Agreement falls within either of the first two categories of agreement described in Masters.

[72] Both parties have very similar recollections of the MAC and the Settlement Agreement. Ms Di Blasi was willing to adopt the agreed statement of facts proposed by Coles and her own statement and submissions do not significantly depart from Ms Bramwell’s or Ms Mulenga’s notes taken during the MAC.

[73] I am not satisfied that Ms Di Blasi was adversely affected by having her children, aged 15 and 10 at home with her on school holidays while she participated in the MAC. She has not provided evidence that she informed the Deputy President that there was any adverse impact on her decision-making by having a late-primary school and a high school aged child at home. I am not satisfied, nor has she properly made out that she was without capacity to enter into the settlement agreement.

[74] Further, as appropriately conceded by Coles, Ms Di Blasi proved to be a firm negotiator, requiring Coles to increase its offers of settlement against itself in order to meet Ms Di Blasi’s offer of settlement of 16 weeks’ pay. It was not Ms Di Blasi who conceded the final offer; it was Coles who increased its offer to meet her offer.

[75] I am satisfied that the ‘usual’ terms that were ultimately reached including the requirement for confidentiality and non-disparagement were sufficiently explained to Ms Di Blasi, and she agreed to these terms. She accepted so at the hearing before me. The terms within the written document reflect what she stated to be the agreed settlement at the MAC.

[76] Ms Di Blasi was unequivocal when she confirmed in written submissions and at the hearing that she understood that she had ‘made a deal’, or reached agreement during the MAC on 18 April 2019. This is evident in the following expressions set out in Ms Di Blasi’s submissions, together with what was said at [41]:

•  “Once I had made a decision that afternoon…”;

•  “I spent the rest of the day regretting the financial compensation I had agreed to….”; and 

•  “By settling I hadn't achieved what I have set out to do”

[77] I accept that following the MAC, and as she put it, not experiencing relief that the matter was over, Ms Di Blasi then felt that she should not have entered into an agreement, and instead, should have pursued her substantive application.

[78] I find the Settlement Agreement was properly made between Ms Di Blasi and Coles, and the Settlement Agreement falls within the umbrella of the first category described in Masters v Cameron. Accordingly, a binding settlement agreement was reached at the conclusion of the MAC.

Conclusion

[79] I am satisfied that Ms Di Blasi’s application pursuant to s.394 of the Act has no reasonable prospects of success because the parties have entered into the Settlement Agreement.

[80] In accordance with the Settlement Agreement, Coles is to pay $8,142.56 gross (less relevant taxation) to Ms Di Blasi within 14 days of this decision.

[81] Coles’ application to dismiss Ms Di Blasi’s application for an unfair dismissal remedy is granted and Ms Di Blasi’s application is dismissed pursuant to s.587(1)(c) of the Act.

COMMISSIONER

Appearances:

Mr W Spargo, Lander & Rogers, on behalf of Coles;

Ms M Mulenga, on behalf of Coles

Ms Alicia Di Blasi, Respondent to Coles’ application

Hearing details:

Brisbane, 2 May 2019

Printed by authority of the Commonwealth Government Printer

<PR707865>

 1   Di Blasi v Coles Supermarket Aust Pty Ltd[2019] FWC 2713

 2   Agreed Statement of Facts produced by Coles, 26 April 2019, Exhibit A1.

 3   Submissions of Ms Alicia Di Blasi, 1 May 2019, Exhibit R1, pg 1.

 4   Ibid, pg 2.

 5   Ibid, pg 2.

 6   Ibid, pg 4.

 7   Masters v Cameron (1954) 91 CLR 353, 360.

 8   Feldman v GNM Australia Ltd [2017] NSWCA 107, [68].

 9   Tomas v Symbion Health [2011] FWA 5458, [10].

 10   Ibid, [11].

 11   Gill v Rio Tinto Aluminium [2017] FWC 2903, [26]; Respondent’s submissions regarding application to dismiss, 30 April 2019, [28].

 12   Curtis v Darwin City Council (2012) 224 IR 174, [9].

 13   Zoiti-Licastro v Australian Taxation Office (2006) 154 IR 1, [12].

 14   Respondent’s submissions regarding application to dismiss, 30 April 2019, [26].

 15   Ibid, [27].